Saturday, 2 August 2014

I fear we shall soon be seeing a
lot more reports such as the one I read of an application allowed by the Court
of Appeal last Tuesday. I have not yet
seen the full judgment, only a case summary, but you get the flavour of things
from key phrases within the head note:-

“A judge’s belief that he was hearing the
full trial of a claim...when in fact liability had already been decided...amounted to a
serious procedural irregularity.”

Clearly it was a complicated
case.The claimant had been a trustee of
a charity which he alleged owed him some money during his period of
office.Initially a judge had decided
that the charity was liable and directed a hearing to decide for how much.

Subsequently the former trustee
issued a claim for further sums that had come to light.The charity tried to set aside the earlier
judgment but that, a counterclaim and three further defences were all struck
out.

Somehow it came before another
different judge who seemingly started from scratch, considered all issues and
decided that the claim failed in its entirety.He did not know that liability had already been decided and that other
judges had limited and defined the issues on quantum.

I find it bizarre that this sort
of thing can happen.Again, the finger
points first at the court and what must be an inadequacy of records and
management.Shortcomings are rife now,
whatever the Lord Chancellor and his friends would have you believe – see Grim fairytales.

But would all of this have
happened with professional legal representation on both sides or even either
side?I think not.

The fact is that at the ill-fated
trial, the claimant appeared in person and the defendants had a McKenzie friend assisting them.

For those who don’t know what
this means, it translates roughly to somebody who is not as bamboozled and
bewildered by the court process as the person that they are permitted to
assist.

The result is a complete
farce.With the assistance of a
barrister, on ‘direct access’ (i.e. cutting out a solicitor intermediary to
keep the cost down), the claimant has taken it before three Lords Justice of
Appeal who have set the decision aside.Now after the expense of that trip it goes back to the original court
for yet another hearing.

Who knows how long ago it would
all have been resolved with proper representation on either or both sides?

Who knows how long ago it might
have settled with a bit of
professional knowhow and input?

Things are only set to get worse
as Pinocchio Grayling hacks away at resources and tells the world that we are
“maintaining and improving”.He is assisted
of course by his chums in the insurance industry telling us that the new
“clever” is dumb and there is not much law involved.

Catastrophic and injury claims
technical manager at AXA insurance, David Fisher, is reported to have told the Jaggards and Taylor-Rose Law Costs and
Litigation Conference the week before last that:-

“The more intelligent law firms are dumbing
down.Most personal injury claims are a commodity and don’t require a great amount
of law”

I have seen at first hand some of
the dumbed down work that does not require a great deal of law conducted by one
of the outfits Mr Fisher had in mind when he made that remark.

See Cleaning bills and the case where one of our “more intelligent”
predecessors tried to settle the claim for first an eighth and subsequently
half of the value that we subsequently recovered.

Somehow it’s now clever to be
incompetent.The insurance industry has
always treated victims and their claims as “a commodity” and will obviously
continue to promote these factories full of cheap operatives who can barely
spell “law” let alone apply any great amount of it.

It’s a self-serving, cyclical and
arrogant view that cares nothing for the destruction of our legal system and
everything for shareholder returns.

We shall increasingly see the
courts clogged up with nonsense such as the Court of Appeal had to unravel last
Tuesday.The problem will be further
aggravated by the departure of many judges who don’t need the hassle, and can
derive neither satisfaction nor pleasure from the job any more.

It will be the same everywhere as
the capable folk with a vocational outlook handover to the lunatics – until there are no more heroes.